States must stop clamping down on free speech in name of fake news

 CONTEXT:

1. The COVID vaccine being administered by the government of India raises safety and efficacy concerns, rising from a rushed approval process.
2. Ministry of Home Affairs (MHA) on 19 January 2021 has recommended that all state governments pursue criminal action against individuals and organisations spreading “unfounded” or “misleading” rumours that “create doubt” about the vaccine’s efficacy relying on the ambiguously worded penal provisions of the Disaster Management Act (DMA), 2005 and the Indian Penal Code (IPC), 1860.

 

FAKE NEWS:

1. The evolution of a nebulous category of “fake news” has become the bedrock of curtailment of free speech.
2. The constitutional guarantee of the right to free speech can only be restricted in a manner that is reasonable and on grounds listed under Article 19(2).
3. The SC has also reiterated that the proportionality of restrictions on speech must be examined while determining their reasonableness. Where restrictions are vague, overbroad, and punitive, they create a chilling effect on free speech and have been held to be unconstitutional by the Supreme Court.
4. The terms “unfounded”, “misleading” and “doubt” give the police unhindered elbow room to subject individuals to detention and prosecution for raising any questions about government actions in a pandemic.
5. Given the government’s lack of proactive transparency on safety issues with respect to the vaccines’ approval, public scrutiny serves an important function.

 

PAST INSTANCES:

1. This is not the first time that the state has resorted to chilling free speech during the pandemic. When the lockdown was first imposed, several state governments (under the Union government’s directions) used state regulations under the Epidemic Diseases Act, 1897 and Disaster Management Act to criminalise both “fake news” and “unnecessary information”.
2. The CPA Project’s study of policing during the pandemic found that several FIRs had been registered across Madhya Pradesh for “spreading rumours” about COVID-19.
3. The most blatant abuse of such powers was an FIR registered against an individual who proclaimed support for Tablighi Jamaat on WhatsApp.
4. A report by the Rights and Risks Analysis Group (RRAG) has documented 55 instances of targeting of journalists during the lockdown.
5. State governments have used the garb of epidemic disease control to prosecute persons for reporting on mismanagement of the pandemic, corruption and the lack of state support for migrant workers and others affected by the pandemic.
6. The only purpose of these “fake news” laws has been to advance narratives of effective governance during the pandemic.

 

CONSEQUENCES :

1. The consequences of an illegitimate system of chilling free speech through criminal law also speak of two main problems: Unchecked discretion of the police and the executive’s brazen expansion of speech restricting laws.
2. The executive’s brazen expansion of speech restricting laws coupled with the inconsistent protection extended by our constitutional courts makes this abuse of discretion possible, and even encourages it.
3. The targeting of journalists and dissenters as a part of lockdown enforcement strategy was enabled by state regulations for epidemic control.
4. Laws to tackle rumours and fake news thus go beyond the scope and manner of permissible restrictions.

 

Laws and Regulation to Curb Fake News in India:

There is no specific law against fake news in India. Free publication of news flows from Article 19 of the Constitution guaranteeing Freedom of Speech.

1. Press Council of India: It is a regulatory body which can warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist if it finds that a newspaper or a news agency has violated journalistic ethics.
2. News Broadcasters Association: It represents the private television news and current affairs broadcasters. The self-regulatory body probes complaints against electronic media.
3. Civil or Criminal Case for Defamation: It is another resort against fake news for individuals and groups hurt by the fake news. IPC Section 499 (defamation) and Section 500 (whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both) provide for a defamation suit.
4. Indian Broadcast Foundation: It looks into the complaints against contents aired by channels.
5. Broadcasting Content Complaint Council: It admits complaints against TV broadcasters for objectionable TV content and fake news.
6. Indian Penal Code: Section 153 (wantonly giving provocation with intent to cause riot) and Section 295 (injuring or defiling a place of worship with intent to insult the religion of any class) can be invoked to guard against fake news.
7. Information Technology Act 2000: According to the Section 66 of the act, if any person, dishonestly or fraudulently, does any act referred to in Section 43 (damage to computer, computer system), shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

 

How and what extent it effect Indian democracy :

1. Faith in Media: People’s faith in social, print and electronic media reduces which could affect the benefits of these Media as well the spirit of democracy as media being the fouth estate of democracy.
2. Society: It can disturb the social fabric of the society and tensions among communities persists for long times
3. Economic: As communal tendencies emerge in politics due to the spread of fake news economic development has taken back seat
4. Political:  loyalist politics or tall promises to something akin to psychological warfare.
5. International: Deep fakes are used by countries to target other countries and bring chaos or desired political changes
6. Economic: As communal tendencies emerge in politics due to the spread of fake news economic development has taken back seat.

 

Challenges in controlling the fake news:

1. No standard definition.
2. Lack of regulation
3. Difficult to achieve balance.(Art 19)
4. Tracking fake new on social media.
5. Monitor of individual. Vs Right to privacy.
6. lack of cyber security system.

 

 WAY AHEAD:

1. Public trust in the government during crises is contingent upon disclosure and transparency, not criminal prosecution.
2. It is globally acknowledged that effective government communication about prevention and cure is key during a public health crisis.
3. Therefore, the preliminary response strategy of governments and international bodies to the pandemic was disseminating information about the importance of mask wearing and social distancing.
4. Effective government function necessarily requires adequately engaging with and scientifically responding to both valid criticism and unscientific misconceptions to build robust public discourse.

 

CONCLUSION:

1. No democratic government can be considered effective if it fails to be transparent and accountable.
2. When criminal law is relied on to place gags on valid questions and there is a failure to communicate all necessary information to the public, the government violates the principle of informed consent — a crucial tenet of healthcare.
3. “Minimum government, maximum governance” has unfortunately translated into minimum government transparency and maximum public penalisation.